# CFTC Letter No. 09-01: Hong Kong Futures Exchange Limited’s Request for No-Action Relief in Connection with the Offer and Sale of its Mini Futures Contracts Based on the Hang Seng Index and the Hang Seng China Enterprises Index in the Unite..

> Federal · Agency guidance · In force

URL: https://www.frixlaw.com/law-library/statutes/CFTC_L09_01

## Section

- **Citation:** CFTC Letter No. 09-01
- **Heading:** Hong Kong Futures Exchange Limited’s Request for No-Action Relief in Connection with the Offer and Sale of its Mini Futures Contracts Based on the Hang Seng Index and the Hang Seng China Enterprises Index in the Unite..
- **Jurisdiction:** Federal
- **Kind:** Agency guidance
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** CFTC Staff Letters (2008-present) / Hong Kong Futures Exchange Limited’s Request for No-Action Relief in Connection with the Offer and Sale of its Mini Futures Contracts Based on the Hang Seng Index and the Hang Seng China Enterprises Index in the Unite...

## Text

Summary: Hong Kong Futures Exchange Limited’s Request for No-Action Relief in Connection with the Offer and Sale of its Mini Futures Contracts Based on the Hang Seng Index and the Hang Seng China Enterprises Index in the United States.

U.S. COMMODITY FUTURES TRADING COMMISSION
Three Lafayette Centre

1155 21st Street, NW, Washington, DC 20581
Telephone: (202) 418-5120
Facsimile: (202) 418-5524

Office of General Counsel

CFTC Letter No. 09-01
January 16, 2009
No-Action
Office of General Counsel

Calvin Tai
Director
Hong Kong Futures Exchange Limited
12/F One International Finance Centre
1 Harbour View Street
Central, Hong Kong

Re:
Hong Kong Futures Exchange Limited’s Request for No-Action Relief in
Connection with the Offer and Sale of its Mini Futures Contracts Based on
the Hang Seng Index and the Hang Seng China Enterprises Index in the
United States

Dear Mr. Tai:

This is in response to your letter dated March 7, 2008 and attachments,
requesting on behalf of the Hong Kong Futures Exchange, Limited (“HKFE”), that the
Office of General Counsel of the Commodity Futures Trading Commission
(“Commission” or "CFTC") issue a no-action letter concerning the offer and sale in the
United States of HKFE’s mini futures contracts (collectively “mini futures”) based on the
Hang Seng Index (“HSI”) and the Hang Seng China Enterprises Index (“HSCEI”)
(collectively, “Indices”).1

We understand that all the representations about HKFE in your April 11, 2005
submission on HSCEI futures (attached as Appendix 1) remain true and correct, and
are incorporated into your present submission. Based on your April 11, 2005
submission, HKFE is one of the major derivatives markets in Asia
ex (“HSI”) and the Hang Seng China Enterprises Index (“HSCEI”)
(collectively, “Indices”).1

We understand that all the representations about HKFE in your April 11, 2005
submission on HSCEI futures (attached as Appendix 1) remain true and correct, and
are incorporated into your present submission. Based on your April 11, 2005
submission, HKFE is one of the major derivatives markets in Asia. In operation since
1976, HKFE has been recognized as an “exchange company” under the Securities and
Futures Ordinance of the Laws of Hong Kong (“SFO”) in order to operate a derivatives

1 This Office previously has granted no-action relief in connection with HKFE’s futures
contracts on: 1) the HSCEI and the HSI, see CFTC Staff Letters No. 06-22, [2005-2007
Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 30,366 (Sept. 26, 2006) and No. 94-50,
[1992-1994 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,114 (June 1, 1994); and 2)
the HKFE Taiwan Index, see CFTC Staff Letter No. 99-25, [1998-1999 Transfer Binder]
Comm. Fut. L. Rep. (CCH) ¶ 27,715 (July 14, 1999).

2
market. HKFE and its wholly-owned subsidiary, HKFE Clearing Corporation Limited
(“HKCC”), are subject to the regulatory oversight of the Hong Kong Securities and
Futures Commission (“SFC”). SFC is responsible for enforcing the SFO and ensuring
exchange participants’ compliance with statutory requirements, including provisions
related to market manipulation, financial requirements, internal control requirements,
and the SFC’s Code of Conduct for Persons Licensed by or Registered with the SFC.2

The HSI mini futures contract began trading on October 9, 2000 and the HSCEI
mini futures contract began trading on March 31, 2008
ensuring
exchange participants’ compliance with statutory requirements, including provisions
related to market manipulation, financial requirements, internal control requirements,
and the SFC’s Code of Conduct for Persons Licensed by or Registered with the SFC.2

The HSI mini futures contract began trading on October 9, 2000 and the HSCEI
mini futures contract began trading on March 31, 2008. The HSI is a broad-based,
modified-free-float-adjusted-market-capitalization-weighted index designed to reflect the
performance of the overall Hong Kong stock market.3 The HSCEI is a broad-based,
modified-free-float-adjusted-market-capitalization-weighted index composed of all H-
share common stocks that are listed on the Stock Exchange of Hong Kong (“SEHK”)
and that are included in the Hang Seng Composite Index (“HSCI”). Compiled and
managed by HSI Services Limited, the HSCEI is designed to reflect the overall
performance of the H-share companies in the HSCI.4

As of January 31, 2008, there were 43 stocks in each of the Indices, with a total
adjusted market capitalization of the HSI and the HSCEI of U.S. $652,770 million and
U.S. $227,839 million, respectively.5 Also as of that date, the largest single stock
represented 15.56%, and the five most heavily weighted stocks accounted for 40.76%
of the HSI.6 The largest stock represented 10.5%, and the five most heavily weighted
stocks accounted for 43.01% of the HSCEI. The stocks comprising the lowest 25% of
the HSI and HSCEI over a six-month period ending January 31, 2008 had an aggregate
value of average daily trading volume in excess of U.S. $30 million: approximately U.S.
$1,528 million and U.S. $1,554 million, respectively.7

2 See letter from Calvin Tai, HKFE, to Julian E. Hammar, CFTC, dated April 11, 2005, at
1-4.

3 See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at 7.

4 See letter from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 10
ume in excess of U.S. $30 million: approximately U.S.
$1,528 million and U.S. $1,554 million, respectively.7

2 See letter from Calvin Tai, HKFE, to Julian E. Hammar, CFTC, dated April 11, 2005, at
1-4.

3 See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at 7.

4 See letter from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 10.

5 Effective March 6, 2006, the weighting methodology of the HSCEI changed to a
modified-free-float-adjusted market capitalization index (with a 15 percent cap on any
component stock), from a market capitalization weighted methodology. See electronic
mail from Ernest Po, HKFE, to Mr. Hammar, dated December 13, 2005.

6 See letter from Calvin Tai to Mr. Hammar, dated March 7, 2008, at 8.

7 Id. at 8-9.

3

HKFE’s mini futures based on the HSI and HSCEI are cash-settled.8 The
notional value for the contracts is determined by multiplying the relevant index level by
HK $10 (approximately U.S. $1.28).9 Prices are quoted in index points with each index
point equal to HK $10 per contract. The minimum price fluctuation is 1.00 index point
(HK $10 per contract). HKFE lists for trading the spot month, the next calendar month,
and the next two nearest months of the March quarterly cycle, and the last trading day
of the contracts is the business day immediately preceding the last business day of the
contract month. Cash settlement occurs on the first business day after the last trading
day based on the final settlement price. The final settlement price for the contracts is
calculated on the last trading day and is based on the relevant average of HSI and
HSCEI observations taken in five minute intervals during the last trading day.10

The Commodity Exchange Act (“CEA”),11 as amended by the Commodity
Futures Modernization Act of 2000 (“CFMA”),12 provides that the offer or sale in the
U.S
e final settlement price. The final settlement price for the contracts is
calculated on the last trading day and is based on the relevant average of HSI and
HSCEI observations taken in five minute intervals during the last trading day.10

The Commodity Exchange Act (“CEA”),11 as amended by the Commodity
Futures Modernization Act of 2000 (“CFMA”),12 provides that the offer or sale in the
U.S. of futures contracts based on a group or index of securities, including those
contracts traded on or subject to the rules of a foreign board of trade, is subject to the
Commission's exclusive jurisdiction,13 with the exception of security futures products,14
over which the Commission shares jurisdiction with the Securities and Exchange
Commission (“SEC”).15 Thus, the Commission’s jurisdiction remains exclusive with

8 This Office previously issued no-action letters regarding the HKFE’s standard-sized
HSI and HSCEI futures contracts on June 1, 1994 and September 26, 2006,
respectively. The subject mini futures contracts are identical to the standard-sized HSI
and HSCEI futures contracts. The only substantive difference is the contract size
(multiplier). See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at 2.

9 The HK/U.S. dollar spot rate on October 28, 2008 was 7.75 HK$ per U.S. dollar (see
http://www.bloomberg.com/markets/currencies/asiapac_currencies.html)

10 See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at Appendix 2.

11 7 U.S.C. § 1 et seq.

12 Appendix E of Pub. L. No. 106-554, 114 Stat. 2763 (2000).

13 See CEA Section 2(a)(1)(C)(ii).

14 Security futures products are defined as a security future or any put, call, straddle,
option, or privilege on any security future. See CEA Section 1a(32). A security future is
defined as a contract of sale for future delivery of a single security or of a narrow-based
security index, including any interest therein or based on the value thereof, with certain
exceptions
n 2(a)(1)(C)(ii).

14 Security futures products are defined as a security future or any put, call, straddle,
option, or privilege on any security future. See CEA Section 1a(32). A security future is
defined as a contract of sale for future delivery of a single security or of a narrow-based
security index, including any interest therein or based on the value thereof, with certain
exceptions. See CEA Section 1a(31).

15 See CEA Section 2(a)(1)(D).

4
regard to a futures contract on a group or index of securities that is broad-based
pursuant to CEA Section 1a(25).16

CEA Section 2(a)(1)(C)(iv) generally prohibits any person from offering or selling
a futures contract based on a security index in the U.S., except as permitted under CEA
Section 2(a)(1)(C)(ii) or CEA Section 2(a)(1)(D).17 By its terms, CEA Section
2(a)(1)(C)(iv) applies to futures contracts on security indices traded on both domestic
and foreign boards of trade. CEA Section 2(a)(1)(C)(ii) sets forth three criteria to govern
the trading of futures contracts on a group or index of securities on designated contract
markets and registered derivatives transaction execution facilities (“DTEFs”):

(1)
the contract must provide for cash settlement;

(2)
the contract must not be readily susceptible to manipulation nor to being
used to manipulate any underlying security; and

(3)
the group or index of securities must not constitute a narrow-based
security index.18

While Section 2(a)(1)(C)(ii) provides that no designated contract market or DTEF
may trade a security index futures contract unless it meets the three criteria noted
above, it does not explicitly address the standards to be applied to a foreign security
index futures contract traded on a foreign board of trade. This Office has applied those
same three criteria in evaluating requests by foreign boards of trade to allow the offer
and sale within the U.S
ract market or DTEF
may trade a security index futures contract unless it meets the three criteria noted
above, it does not explicitly address the standards to be applied to a foreign security
index futures contract traded on a foreign board of trade. This Office has applied those
same three criteria in evaluating requests by foreign boards of trade to allow the offer
and sale within the U.S. of their foreign security index futures contracts when those

16 See CEA Section 2(a)(1)(C)(ii).

17 CEA Section 2(a)(1)(D) governs the offer and sale of security futures products.

18 The first two criteria under CEA Section 2(a)(1)(C)(ii) were unchanged by the CFMA.
With regard to the third criterion, an index is a “narrow-based security index” under both
the CEA and the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78a et
seq., if it has any one of the following four characteristics: (1) it has nine or fewer
component securities; (2) any one of its component securities comprises more than
30% of its weighting; (3) the five highest weighted component securities in the
aggregate comprise more than 60% of the index’s weighting; or (4) the lowest weighted
component securities comprising, in the aggregate, 25% of the index’s weighting, have
an aggregate dollar value of average daily trading volume of less than $50 million (or in
the case of an index with 15 or more component securities, $30 million). See CEA
Section 1a(25)(A)(i)-(iv); Exchange Act Section 3(a)(55)(B)(i)-(iv). Thus, an index that
does not have any of these elements is not a narrow-based security index for purposes
of CEA Section 2(a)(1)(C)(ii). See also CEA Section 1a(25)(B); Exchange Act Section
3(a)(55)(C).
ume of less than $50 million (or in
the case of an index with 15 or more component securities, $30 million). See CEA
Section 1a(25)(A)(i)-(iv); Exchange Act Section 3(a)(55)(B)(i)-(iv). Thus, an index that
does not have any of these elements is not a narrow-based security index for purposes
of CEA Section 2(a)(1)(C)(ii). See also CEA Section 1a(25)(B); Exchange Act Section
3(a)(55)(C).

5
foreign boards of trade do not seek designation as a contract market or registration as a
DTEF to trade those products.19

Accordingly, this Office has examined the HSI and the HSCEI, and the mini
futures based thereon, to determine whether the Indices and the mini futures meet the
requirements enumerated in CEA Section 2(a)(1)(C)(ii). Based on the information noted
herein and as set forth in the letters and attachments noted above, we have determined
that the Indices and the mini futures conform to these requirements.20

In determining whether a foreign futures contract based on a foreign security
index is not readily susceptible to manipulation or being used to manipulate any
underlying security, one preliminary consideration is the requesting exchange’s ability to
access information regarding the securities underlying the index. As noted above, all
the securities underlying the HSI and HSCEI are traded on the SEHK. Both the HKFE
and the SEHK are wholly owned subsidiaries of Hong Kong Exchanges Clearing
Limited (“HKEx”). HKEx is the “recognized exchange controller” (which is a person
recognized by the SFC as the shareholder controller of a recognized exchange
company) of both HKFE and SEHK, and is required under the SFO to ensure, so far as
reasonably practicable, an orderly, informed and fair market in securities and futures
contracts traded on the stock market and futures market operated by SEHK and HKFE
). HKEx is the “recognized exchange controller” (which is a person
recognized by the SFC as the shareholder controller of a recognized exchange
company) of both HKFE and SEHK, and is required under the SFO to ensure, so far as
reasonably practicable, an orderly, informed and fair market in securities and futures
contracts traded on the stock market and futures market operated by SEHK and HKFE.
Both the SEHK and the HKFE may disclose information to each other and to HKEx
pursuant to exchange rules.21 Pursuant to a memorandum of understanding between
SFC and HKEx, HKEx’s obligations include conducting cross-market surveillance in
connection with the markets operated by HKEx.22 Thus, HKFE should have access to
information necessary to detect and deter manipulation. In the event that HKFE is
unable to obtain access to adequate surveillance data in this regard, or is unable to

19 With regard to the third criterion, the CFTC and SEC jointly promulgated Rule 41.13
under the CEA and Rule 3a55-3 under the Exchange Act, governing security index
futures contracts traded on foreign boards of trade. These rules provide that “[w]hen a
contract of sale for future delivery on a security index is traded on or subject to the rules
of a foreign board of trade, such index shall not be a narrow-based security index if a
futures contract on such index were traded on a designated contract market or
registered derivatives transaction execution facility.” CFTC Rule 41.13, 17 C.F.R. §
41.13; Exchange Act Rule 3a55-3, 17 C.F.R. § 240.3a55-3.

20 In making this determination, the Commission staff has concluded that the HSI and
HSCEI do not have any of the elements of a narrow-based security index as
enumerated in CEA Section 1a(25)(A), and accordingly the Indices would not be
narrow-based security indices if traded on a designated contract market or DTEF.

21 See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at 5. See also letter
from Mr
termination, the Commission staff has concluded that the HSI and
HSCEI do not have any of the elements of a narrow-based security index as
enumerated in CEA Section 1a(25)(A), and accordingly the Indices would not be
narrow-based security indices if traded on a designated contract market or DTEF.

21 See letter from Mr. Tai to Mr. Hammar, dated March 7, 2008, at 5. See also letter
from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 7.

22 See letter from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 8.

6
share such data with the CFTC, this Office reserves the right to reconsider the position
we have taken herein.23

In light of the foregoing, this Office will not recommend any enforcement action to
the Commission based on Sections 2(a)(1)(C)(iv), 4(a), or 12(e) of the CEA, as
amended, if HKFE’s mini futures based on the HSI and HSCEI are offered or sold in the
U.S. Because this position is based upon facts and representations contained in the
letters and attachments cited above, it should be noted that any different, omitted or
changed facts or conditions might require a different conclusion. This position also is
contingent on the continued compliance by HKFE with all regulatory requirements
imposed by the SFC, and the applicable laws and regulations of Hong Kong. In
addition, this position may be affected by any rules that the Commission may adopt
regarding futures contracts based on non-narrow-based security indices.

HKFE also has requested that, upon issuance of the relief granted herein, it be
permitted to make its mini futures based on the HSI and HSCEI available for trading by
direct access through its HKATS electronic terminals in the U.S
. In
addition, this position may be affected by any rules that the Commission may adopt
regarding futures contracts based on non-narrow-based security indices.

HKFE also has requested that, upon issuance of the relief granted herein, it be
permitted to make its mini futures based on the HSI and HSCEI available for trading by
direct access through its HKATS electronic terminals in the U.S. in accordance with the
terms and conditions of the foreign terminal no-action letter dated June 9, 2000, as
amended July 30, 2001, issued by Commission staff to HKFE.24 In this regard, HKFE
has certified that it is in compliance with the terms and conditions of the June 9, 2000

23 HKFE has confirmed that it is willing and able to share with the Commission, either
directly or indirectly through SFC or HKEx, information, including customer identification
information, concerning its mini futures based on the HSI and HSCEI, and the securities
underlying the respective Indices. See letter from Mr. Tai to Mr. Hammar, dated March
7, 2008, at 4-5. HKFE also is a signatory to the International Information Sharing
Memorandum of Understanding and Agreement signed on March 15, 1996, at Boca
Raton, Florida.

In addition, HKFE’s regulator (the SFC) and the CFTC entered into a Memorandum of
Understanding concerning Consultation and Cooperation in the Administration and
Enforcement of Futures Laws (October 5, 1995). The SFC also is a signatory to the
International Organization of Securities Commissions’ Multilateral Memorandum of
Understanding Concerning Consultation and Cooperation and the Exchange of
Information (“IOSCO MOU”), to which the Commission also is a signatory. The IOSCO
MOU is a multilateral mechanism for sharing surveillance information on a bilateral
basis between regulators. Prior to signing the IOSCO MOU, a regulator must establish
through a fair and transparent process that it has the legal capacity to fulfill its terms and
conditions
and Cooperation and the Exchange of
Information (“IOSCO MOU”), to which the Commission also is a signatory. The IOSCO
MOU is a multilateral mechanism for sharing surveillance information on a bilateral
basis between regulators. Prior to signing the IOSCO MOU, a regulator must establish
through a fair and transparent process that it has the legal capacity to fulfill its terms and
conditions. Moreover, the SFC is a signatory to the Declaration on Cooperation and
Supervision of International Futures Markets and Clearing Organizations for the sharing
of large exposure information, signed on March 15, 1996, at Boca Raton, Florida.

24 See CFTC Staff Letter No. 00-75 [1999-2000 Transfer Binder] Comm. Fut. L. Rep.
(CCH) ¶ 28,180 (June 9, 2000) and CFTC Staff Letter No. 01-74 [2000-2002 Transfer
Binder] Comm. Fut. L. Rep. (CCH) ¶ 28,612 (July 30, 2001).

7
SI and HSCEI.

foreign terminal no-action letter.25 We have consulted with the Commission’s Division
of Market Oversight (“Division”), which is the Division in the Commission that
administers foreign terminal no-action letters. The Division has concluded that allowing
HKFE to make its mini futures on the HSI and HSCEI available for trading pursuant to
the June 9, 2000 letter would not be contrary to the public interest. Accordingly, on
behalf of the Division, this Office hereby confirms that the no-action relief granted to
HKFE in the June 9, 2000 foreign terminal no-action letter extends to HKFE’s mini
futures based on the H
26

The offer and sale in the U.S. of HKFE’s mini futures on the HSI and HSCEI is, of
course, subject to Part 30 of the Commission’s regulations, which governs the offer and
sale of foreign futures and foreign option contracts in the U.S.27

Sincerely,

Terry S. Arbit

General Counsel

25 See letter from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 11-12 and letter from
Mr. Tai to Mr
ini futures on the HSI and HSCEI is, of
course, subject to Part 30 of the Commission’s regulations, which governs the offer and
sale of foreign futures and foreign option contracts in the U.S.27

Sincerely,

Terry S. Arbit

General Counsel

25 See letter from Mr. Tai to Mr. Hammar, dated April 11, 2005, at 11-12 and letter from
Mr. Tai to Mr. Hammar, dated September 20, 2005, at 10.

26 Please be advised that if HKFE intends to list options on its mini futures based on the
HSI and HSCEI, it may offer and sell those options in the U.S. with no further action
from this Office, see 61 Fed. Reg. 10891 (March 18, 1996). However, if HKFE intends
to make such options available for trading via direct access from electronic trading
terminals in the U.S., HKFE must so notify the Division in accordance with the Notice of
Revision of Commission Policy Regarding the Listing of New Futures and Option
Contracts by Foreign Boards of Trade That Have Received Staff No-Action Relief to
Provide Direct Access to Their Automated Trading Systems From Locations in the
United States, issued on April 18, 2006. See 71 Fed. Reg. 19877 (April 18, 2006).

27 See 17 C.F.R. Part 30.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/CFTC_L09_01. Check the current official text before relying on it. Not legal advice.